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illegal search and seizure -- apparently, the concept still exists

January 23, 2012

Supreme Court Court Rejects Willy-nilly GPS Tracking | Threat Level | Wired.com
By David Kravets
January 23, 2012 |

The Supreme Court said Monday that law enforcement authorities might need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move — but the justices did not say that a warrant was needed in all cases.

The convoluted decision (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position that attaching a GPS device to a vehicle was not a search. The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant....

You know ... I'm by way of thinking that if you want to win your case, telling the Supreme Court that you have the authority (as opposed to the ability) to conduct what may be warrantless searches of the justices themselves is not a really good thing to do.

The decision itself manages the interesting trick of being both unanimous -- in that all nine justices concur in the result, overturning the conviction -- and terribly fractured, with nobody agreeing under what circumstances a warrant might actually be required. They just agree that surveying someone by GPS for 28 days absolutely positively should have required one, because of the length of time. Fewer days? Maybe, maybe not. Absolutely silent on that. And, if the article is accurate, in a truly confusing maneuver, while the justices all agreed that the prolonged duration of this "search" without a warrant was unreasonable and thus resulted in the overturning of the sentence, they declined to state whether a warrant was required in the first place.

Seriously, an actual lawyer is going to have to go over that to make sense of it to me, because it sounds like the only thing the Court could clearly agree on was that the government had exceeded its authority in this particular case. They then bent themselves into pretzels to avoid telling the government exactly what its authority was. In part this is because the Court tires to avoid dealing with purely procedural matters when it can. I also have a sneaky feeling that the Court's belief, to the extent that it can be divined, is that you actually can't go wrong with getting a warrant for placing a GPS device on a suspect's car each and every time. You then have to show probable cause to the judge, you have to demonstrate that you have some concrete reason for believing this person is a criminal. Following this sort of procedure will actually make more certain that you don't have sentences thrown out for not doing what you should have done in the first place. Of course, putting a GPS device on someone's car is low-level enough, in some ways, that it does put the authorities in an interestingly circular bind. They might have enough evidence to suspect that someone's a criminal, and the GPS device might give them enough evidence to make the case. But, of course, if you have to get a warrant first, you have to demonstrate that you have enough evidence to warrant the warrant, so to speak.

The fascinating part comes at the very end, where the government notes, "The government told the justices during oral arguments that that GPS devices have become a common tool in crime fighting, saying it is employed “thousands” of times annually." If that's true, given this decision, just imagine how many cases are going to start parading through the courts. And you're going to get wildly differing decisions from the Circuits, because the Court's decision gives a profound lack of guidance. The Ninth, with a generally more civil-libertarian/liberal lean, will probably throw out many cases; the Fifth Circuit, with its cavalier disregard of human rights (or, indeed, actual humans whenever possible) will be confirming sentences right and left and probably trying to encourage the states to go for death sentences whenever possible even if they didn't do so in the first place. (Yes, yes, I know that's not possible. Nonetheless, the Fifth has a reputation to uphold.)

Posted by iain at January 23, 2012 03:53 PM

 

 

 

 

 

 

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